BSNL & KSEB v Benoy Kurian & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** ## **WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935** ## **RFA.No. 824 of 2010 (E)** **-----------------------AGAINST THE JUDGMENT IN OS.33/2009 of SUB COURT, PALA DATED 11-06-2010** ## **APPELLANT(S)/DEFENDANTS 5 TO 8 IN THE SUIT:** **---------------------------------------------------------------** **1. BSNL REP. BY ITS DISTRICT GENERAL MANAGER, KOTTAYAM.** **2. SUB DIVISIONAL ENGINEER PHONES(GROUPS), BSNL, MUNDAKKAYAM.** **3. M.N.DILEEP KUMAR, S/O. NARAYANA PILLAI,** **JTO, BSNL, ASWATHI BHAVAN** - **KOORALI, PONKUNNAM.** **4. K.D.GOPIDAS, S/O. DAMODHARAN, LINEMAN, BSNL, KEENTHANANICKAL HOUSE KARUVILAM POST, MUNDAKKAYAM.** **BY ADV. SRI.C.S.RAMANATHAN** ## **RESPONDENT(S)/PLAINTIFF/DEFENDANTS 1 TO 4 IN THE SUIT:** **------------------------------------------------------** **1. BENOY KURIAN, S/O KURIAN, THOTTAPPALIYIL HOUSE, CHELIKKUZHY BHAGAM MUNDAKKAYAM KARA, MUNDAKKAYAM VILLAGE KANJIRAPPALLY TALUK.** **2. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, O/O. THE KSEB, VYDYUTHI BHAVAN PATTOM, THIRUVANANTHAPURAM.** **3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, MUNDAKKAYAM.** **4. K.C.MATHEW, S/O. CHACKO, ASSISTANT ENGINEER, KSEB, KALLUKULAM HOUSE R.P.C.POST, ERUMELY NORTH VILLAGE KANJIRAPPALLY TALUK.** ## **RFA 824/2010** ## **5. K.V.NATARAJAN, S/O. VELAYUDHAN,** **LINEMAN, KSEB, CHATHAMPLAPPALLIL KARA KOOTTIKAL.** **R,R2 & 3 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB R,R4,5 BY ADV. DR.GEORGE ABRAHAM R2 BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB RR1 BY ADV. M.DINESH** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10-042013, ALONG WITH RFA. 128/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOTTATHIL B. RADHAKRISHNAN & B. KEMAL PASHA, JJ.** **-----------------------------------------------** R.F.A. Nos.824 of 2010 & 128 of 2012 **-----------------------------------------------** Dated this the 10[th] day of April, 2013 ## **J U D G M E N T** ## **THOTTATHIL B. RADHAKRISHNAN, J.** These appeals by the Bharat Sanchar Nigam Ltd.“BSNL” and Kerala State Electricity Board- “KSEB” are against a decree granting damages for personal injury admittedly suffered by the plaintiff as a result of an incident involving electrical energy. 2. Plaintiff, then aged around 30 years, suffered serious burn in the incident. The very injuries materials on record show that he was under continuous treatment, ultimately, losing the utility of his left hand. His disability was assessed by the R.F.A.824/10 & 128/12 -:2:- competent doctors at 50%. 3. BSNL criticized KSEB for the manner in which they are maintaining the electric supply lines. In turn, KSEB accused BSNL for not having maintained the telephone lines properly. 4. It cannot be disputed that the statutory provisions governing supply of electrical energy as well as laying and maintaining electric supply lines prescribe effective measures to ensure that electrical energy is completely controlled by the licensee, i.e., KSEB, and is effectuated only in strict terms of the provisions of the laws relating to supply of electrical energy. The doctrine of 'strict liability' as enunciated from time to time and applied by the Hon'ble Supreme Court of India and by this Court, definitely points to the liability of KSEB on account of its failure to appropriately maintain the energy supply lines, R.F.A.824/10 & 128/12 -:3:- causing loss to life and limb of human beings and loss to property - See for support, **H.S.E.B. v. Ram Nath [(2004) 5 SCC 793]** , **M.P. Electricity Board v. Shail Kumari, [(2002) 2 SCC 162]** , **Kunjan Raghavan v. Kerala State Electricity Board [2010 (4) KLT 914]** and **Varghese and another v. K.S.E.B[ILR 2013 (2) Ker. 99].** 5. Equally, the provisions of the Telegraph Act, and other provisions which govern laying and maintaining of telecommunication lines enjoin that it is for the licensee; BSNL in this case; to ensure that the lines and equipments under its control are so maintained and they are properly protected. The aforesaid discussion shows that while KSEB has the obligation under the laws to ensure that no loss or damage is caused, except to the extent envisaged by the statutes, for which remedies are also prescribed in such statute laws; BSNL has to ensure that all ## R.F.A.824/10 & 128/12 -:4:- installations under its control as a licensee, are regulated by maintaining the requisite distance from the electric supply lines. The magnetic field that would surround the electric supply line as well as the magnetic field that would surround the lines of telephone connections have to be clearly segregated and maintained in terms of prescribed scientific requirements in accordance with the relevant statutory provisions which prescribe the distance to be maintained and other relevant precautionary measures. The precedent law as to liability laid down in relation to the law relating to supply of electrical energy would apply on all fours to the cases governed by the Telegraph Act as well, to the extent of laying and maintenance of supply lines governed by the provisions of that Act and the Rules thereunder. 6. On record is the contradicting evidence of R.F.A.824/10 & 128/12 -:5:- BSNL and KSEB, showering accusations at each other. The plaintiff, who is the mute victim of the incident, cannot be expected to discharge any burden more than what has been done by him in this case. The trial Judge has weighed the entire legal evidence, facts and attendant circumstances and has fixed the liability at 50% each on BSNL and KSEB. We have examined the entire evidence and have heard the learned counsel for KSEB and BSNL in extenso; and do not find any ground to interfere on that count. 7. In so far as the quantification of compensation is concerned, paragraph 22 of the impugned judgment specifically deals with items under which the court below has granted compensation. The materials relied on and the inferences drawn by the court below necessarily brought it to the granted decree of Rs.7,05,000/- with interest at 6% per annum. R.F.A.824/10 & 128/12 -:6:- We find no ground to interfere with the quantification of damages and the awarding of interest. 8. In the result, these appeals are dismissed with costs before the trial court. However, there is no order as to costs in this appeal because the plaintiff is being represented at State expense through the High Court Legal Services Committee. We record appreciation for the assistance rendered by Advocate M. Dinesh appointed by the High Court Legal Services Committee to appear on behalf of the victim, the plaintiff. **Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE** **Sd/- B. KEMAL PASHA, JUDGE** ul/ [True copy] _P.S. to Judge_